Donald F. Spang, Brett A. Huckabee, Reading, for appellant.
Grant E. Wesner, Deputy Dist. Atty., Reading, for appellee.
Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Jones, C. J., did not participate in the consideration or decision of this case. Nix, J., concurs in the result. Eagen, J., filed a dissenting opinion.
On December 7, 1973, appellant James Preston Kichline was convicted after a jury trial of murder in the
first degree. The trial court denied post-verdict motions and imposed judgment of sentence of life imprisonment. On this direct appeal,*fn1 appellant contends that he is entitled to a new trial because of numerous pretrial and trial errors. Finding none of his arguments persuasive, we affirm the judgment of sentence.
I. SUFFICIENCY OF THE EVIDENCE
This Court is required to review the sufficiency of the evidence to sustain a conviction in every case of murder in the first degree. Act of February 15, 1870, P.L. 15, § 2, 19 P.S. § 1187 (1964). We have often stated the test to be applied:
"[W]hether, viewing all of the evidence admitted at trial in the light most favorable to the Commonwealth and drawing all reasonable inferences favorable to the Commonwealth, there is sufficient evidence to enable the trier of fact to find every element of the crime beyond a reasonable doubt."
Commonwealth v. Bastone, 466 Pa. 548, 552, 353 A.2d 827, 829 (1976); see Commonwealth v. Green, 464 Pa. 557, 565, 347 A.2d 682, 686 (1975); Commonwealth v. McFadden, 448 Pa. 277, 281, 292 A.2d 324, 326 (1972).
In the late afternoon of April 22, 1973, a gas station in Lehigh County was robbed and the gas station attendant abducted. Police discovered spent cartridges at the scene of the robbery. The following day, the attendant's body was found covered with a blanket in a deserted area of Berks County. Medical examiners established that gunshot wounds were the cause of death. Appellant surrendered to police on April 25, 1973, and confessed to the robbery-murder. He stated that he had driven his father's car and had used a blanket found in the trunk of the car to cover the body, that he shot the victim shortly
after abducting him, and that he had used his brother's gun, which he later hid in a hotel room. Police verified the details of appellant's confession and located the weapon. A ballistics expert testified that both the fatal bullets and the cartridges found at the gas station had been fired from the gun found in the hotel room.
The statute applicable to this case defines murder in the first degree as follows:
"All murder which shall be perpetrated by means of . . . willful, deliberate and premeditated killing, or which shall be committed in the perpetration of, or attempting to perpetrate any . . . robbery . . . shall be murder in the first degree."
Act of June 24, 1939, P.L. 872, § 701, as amended (formerly codified as 18 P.S. § 4701.*fn2 The evidence here is sufficient for the jury to conclude beyond a reasonable doubt that appellant killed decedent in the perpetration of a robbery.
Appellant argues that the facts of this case preclude a conviction of felony-murder because, according to appellant, he had already completed the robbery and fled the scene of the crime before the homicide was committed. The trial judge refused appellant's point for charge which incorporated this theory.
In order for the felony-murder rule to apply, there must be "'such actual legal relationship between the killing and the crime committed or attempted, that the killing can be said to have occurred as a part of the perpetration of the crime, or in furtherance of an attempt or purpose to commit it.'" Commonwealth v. Kelly, 333 Pa. 280, 285-86, 4 A.2d 805, 807 (1939) (quoting 13 R.C.L. § 148); accord Commonwealth v. Robinson, 450 Pa. 145, 147-48, 299 A.2d 220, 222 (1973). Thus, appellant may be found guilty of felony-murder if there
was "no break in the chain of events" between the killing and the robbery such that the homicide "had an ultimate relation [to] and close connection with the felony." Commonwealth v. Carey, 368 Pa. 157, 162, 82 A.2d 240, 242 (1951). Accord Commonwealth v. Alston, Pa. , 317 A.2d 229, 232 (1974); Commonwealth v. Kelly, supra at 280, 4 A.2d at 805. As Professor Perkins stated:
"Under the prevailing view if the killing resulted from the perpetration of the design it falls within the rule even if the felony itself had been completed before the fatal blow was struck."
R. Perkins, Criminal Law at 42 (2d ed. 1969); see W. LaFave and A. Scott, Criminal Law § 71 (1972).
The evidence presented here was sufficient for the jury to find that there was no break in the chain of events and that the homicide resulted from and was closely connected to appellant's design to perpetrate a robbery. Therefore, the trial court properly refused appellant's point for charge, and appellant could have been found guilty of murder in the first degree based upon a felony-murder theory.
Appellant, relying on Commonwealth v. Pierce, 451 Pa. 190, 303 A.2d 209, cert. denied 414 U.S. 878, 94 S.Ct. 164, 38 L.Ed.2d 124 (1973), claims that he was denied a fair trial because of ...